Tuesday, August 25, 2015

Press Release | Respect and Facilitate — and Not Deter — the Right to Assemble Peaceably and Without Arms

Saturday, 22 August 2015 04:02pm

The
Malaysian Bar abhors the decision of the police, reported in the media
earlier this week, to “disallow” the BERSIH 4 rally that is scheduled to
be held in Kuala Lumpur on 29 and 30 August 2015.

The
constitutional right to assemble peaceably and without arms is
guaranteed by Article 10(1)(b) of the Federal Constitution, subject to
the limited restrictions under Article 10(2)(b). Such a restriction was
previously found in Section 27 of the Police Act 1967, whereby a
licence from the police was required for an assembly.

However,
Section 27 was repealed in 2012, and the Peaceful Assembly Act 2012
(“PAA”) was enacted, which came into force on 23 April 2012. Thus, the
requirement to obtain a licence from the police under the Police Act
1967 no longer exists.

Under
the PAA, there is a requirement to notify the police of an intended
assembly,[1] and the police may regulate the assembly by stipulating
restrictions and conditions for the purposes of security or public
order.[2] There is no requirement of licensing by the police for an assembly, under the PAA.

Thus, the police have no
power under the PAA to prohibit a rally. The decision of the police to
“disallow” the BERSIH 4 rally is therefore contrary to the PAA, and
legally flawed.

Recently, the Court of Appeal in the case of Nik Nazmi Nik Ahmad v Public Prosecutor
[2014] 4 CLJ 944 dealt with the PAA,[3] and unanimously affirmed the
constitutional liberty to assemble peaceably — as enshrined in Article
10(1)(b) of the Federal Constitution — as a fundamental right of all
Malaysians. The Court of Appeal decided that the failure to give notice
of an intended assembly will not be subject to criminal sanction under
the PAA.

In
this regard, the Deputy Inspector General of Police, Dato’ Sri Noor
Rashid Ibrahim, had reportedly initially said that the police would not
object to the rally, that “the public has the right to gather, has the
right to voice out their dissatisfaction”, and that “the right to
assembly is allowed under the Federal Constitution”.[4] The reversal
of this decision now is perplexing and untenable.

The
police must respect and facilitate the constitutionally guaranteed
right to assemble peaceably and without arms. This is a duty imposed by
law on the police, and it is not a question of their “tolerance”[5] of
the exercise of the constitutional right by citizens.

The
police should also learn from their past mistakes in mishandling and
deterring public assemblies. The Human Rights Commission of Malaysia,
SUHAKAM, in its “Report of the Public Inquiry into the Incidents During
and After the Public Assembly of 28 April 2012” found that “the police
did not assist or facilitate in the dispersal of the participants during
the public assembly of 28 April 2012 as envisaged under section 8 of
the PAA”,[6] that “there was use of disproportionate force and
misconduct by the police towards the participants”, and that “the
actions of the police were driven more by anger, frustration and the
need to inflict punishment than by duty”.[7]

It
is appalling that the police have yet to take any action against the
group of approximately 30 persons who reportedly committed acts of
intimidation and harassment directed at the organiser of the BERSIH 4
rally, on 20 August 2015. It was reported that they poured red liquid
onto a life-sized cardboard cutout of Maria Chin Abdullah, the
Chairperson of BERSIH 2.0, stomped on it and threw it in a rubbish bin.
The spokesperson of the group also announced his intention to gather
6,000 to 7,000 persons to open up stalls in front of her home. Such
conduct is offensive and must not be condoned by the police.

The
Malaysian Bar is also revolted by statements — attributed to the
Federal Territories Minister Datuk Seri Tengku Adnan Tengku Mansor —
which were directed at BERSIH 4 rally participants. The Minister had
reportedly said, “If they want to, they can go to any stadium they want .
. . Do whatever, you want to shout, want to be naked, do whatever you
like.”[8] This callous remark by a Minister displays a shocking level
of ignorance of, and blatant disrespect for, the constitutional rights
of Malaysians.

The
Malaysian Bar strongly urges the police and the authorities to respect
the constitutional right of citizens to assemble, and to allow the
BERSIH 4 rally to proceed unhindered. If the police cooperate with the
organiser, facilitate the rally, and employ restraint in the exercise of
their powers, a peaceful and incident-free assembly can be held on 29
and 30 August 2015, in the true spirit of “Merdeka”.

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